Regina v Oli [2009] SBHC 10; HCSI-CRC 397 of 2007 (20 February 2009)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 397 of 2007

BETWEEN:

REGINA

AND:

GRAHAM OLI AND JOHN WALE WIKITA

Date of Hearing: 3, 11, 12, 18, 19 November 2008
Date of Decision: 20 February 2009

Mr. Iomea and Mr. Coates for Crown
Ms. Fa’asau for Graham Oli
Ms. Lidimani for John Wale Wikita

DECISION AFTER TRIAL

Cameron PJ

1. The two accused Graham Oli and John Wale Wikita are each charged with the rape of Ms Jesslyn Tina.

2. The Crown case relies on the evidence of the complainant Jesslyn Tina. Her evidence was that on the evening of 20 March 2007 she and a friend Margaret Nisi accompanied a crew member of the vessel MV Noda to that boat, which was moored at Point Cruz wharf, and joined the crew on the deck for a meal. Afterwards she stated that the accused Graham Oli told her that because she had eaten the crew’s food she would have to have sex with all the crew members. She said that he had then threatened her, pulled her by the arm to a cabin, and had sexual intercourse with her against her will. Following this, she asserts that the other accused John Wale Wikita had sex with her against her will. A short time after this ordeal she said that she made her escape through the cabin window and onto the wharf, and made a complaint to police that same evening.

3. It is accepted that both accused did indeed have sex with Jesslyn Tina that evening, but the defence case is that on both occasions it was with her consent. The question of whether or not she consented to the sex is therefore the sole issue to be decided.

4. An unusual feature of this case is what occurred in relation to the complainant Jesslyn Tina during the trial. Naturally she was the first witness called for the prosecution, and she gave evidence during the first day of the trial, namely Monday 3 November 2008. By the end of that day cross-examination of her by Ms. Fa’asau had begun, and I made it crystal clear to Jesslyn Tina that she was required to re-attend Court the next day at 9.30am. Notwithstanding this direction, she failed to attend court at all the next day, and I ordered that she be arrested. Over the next few days the Police endeavoured unsuccessfully to locate her, as it was reported that she had vacated her usual place of residence. It was only on the following Monday 10 November, some six days later, that a family member persuaded her to present herself to Police, which she did. Her evidence in court resumed on Tuesday 11 November 2008. During her absence from 4 to 10 November the Court was forced to suspend the hearing of the case. No satisfactory explanation of her absence was forthcoming.

5. In light of the extreme reluctance by the complainant to give evidence voluntarily, I have treated her evidence with particular caution, because her actions raise the question as to whether her evidence can be relied on as truthful.

6. I found the evidence of Jesslyn Tina as to whether she consented to having sex to be unconvincing in a number of important respects, these being:

(a) she asserted that during the meal with the crew, she remained silent and did not interact with the other crew members, and yet she gave evidence that she and her girlfriend had willingly accepted an invitation from a stranger to have a meal on the boat with the crew.

(b) she asserted that she was told to have sex with the crew by the accused Graham Oli who was drunk and who pulled her into the cabin while she was crying and saying she did not want to. She said this happened in front of the other crew members, who did nothing to assist her. I accept the evidence that most of these other crew members were older than Graham Oli, and consider it unlikely that if confronted with the situation as described and after having shared a meal with the complainant not one of them would have intervened or at least protested on her behalf.

(c) as a related point, I consider it likely that had Jesslyn Tina been taken to the cabin in this way she would have called out to one or more of the crew to assist, none of whom, on her evidence, had shown any belligerence towards her during the meal.

(d) she asserted that neither of the accused used a condom during sex, that she had seen the penis of the accused Graham Oli, and that on both occasions of sexual intercourse she had felt the person ejaculate inside her; the Doctor whose evidence I accept examined her the next day and found no trace of spermatozoa, which he stated you would expect to find even after the lapse of that period had there been no or improper use of a condom combined with ejaculation inside her. I note that in his statement to police, Graham Oli stated he had used a condom, as did John Wale Wikita in his evidence.

(e) Her evidence was that she was bitten hard on both bare nipples by Graham Oli, and that it was painful; the Doctor’s evidence was had that occurred, he would have expected to see some signs of that when he examined her breasts the next day, but there were no signs of any injury. I note that no bruising or injuries to the genitalia or vagina were present on examination, which does not rule out non consensual sex but certainly does not support the contention that it occurred.

7. It was the evidence of Jesslyn Tina that after having had sex with both the accused, a third man entered the cabin wanting sex. Her evidence was that by that stage her legs were shaking and she was crying, so she pleaded with the third man to go away; a crew member Philip Joe Waleteo, who I accept was that third man, gave evidence of having entered the cabin after the accused John Wale Wikita had been there. Mr. Waleteo’s evidence was that the complainant in effect told him she would have sex with him after she had rested, and that she was not crying and appeared normal at the time. This sex did not occur, according to Mr. Waleteo, because of the arrival and intervention of the captain of the boat. I consider Mr. Waleteo had no reason to lie to the court especially as he did not have sex with the complainant and had nothing to hide, and given the unconvincing nature of Jesslyn Tina’s evidence I prefer his evidence as outlined to that of the complainant. I note that Mr. Waleteo was called by the Crown as part of the prosecution case against the two accused, and the effect of his evidence is that the complainant did not present as a person who had just been raped by two men. I accept Mr Waleteo’s evidence as outlined.

8. I note that the accused Graham Oli gave a statement to Police admitting sex with the complainant but asserting that it was consensual. The accused John Wale Wikita, who had not provided a statement, gave evidence in Court admitting sex with the complainant but asserting that it was with her consent. Nothing in the evidence of John Wale Wikita or the statement of Graham Oli alters my view that the evidence of the complainant, relevant to the question of lack of consent was unconvincing.

9. I note that the friend of the complainant, Margaret Nisi, was not called to give evidence, and nor were any crew members said to be present that night except Mr. Waleteo. While that is not a criticism of the conduct of this prosecution, as I understand the problem was that those persons either could not be located or were not in Guadalcanal at the time of the trial, it has meant I have had to decide this case based on the limited evidence of the complainant, one crew member, two police officers, one of the accused, and the Doctor. The fact that a number of other persons were present that evening and no doubt if called would have shed further light on the matter is unfortunate.

10. I was invited by Ms. Fa’asau to rule on whether any practice of the court requiring corroboration of the evidence of a complainant asserting rape is an appropriate one. However, that issue does not arise in this case and so I decline to do so.

11. For the reasons given I consider the Crown has failed to prove beyond reasonable doubt that the two instances of sexual intercourse in this case were without the complainant’s consent.

12. Graham Oli, I find you Not Guilty of the charge of rape, and you are acquitted and discharged accordingly.

John Wale Wikita, I find you Not Guilty of the charge of rape, and you are acquitted and discharged accordingly.

_______________________

BY THE COURT